Optimizing Corporate Structure for International Arbitration
Under free trade agreements, governments surrender national authority to foreign tribunals with respect to disputes regarding not only local private firms, but also the government signatories themselves. The NYT has reported on Pacific Rim’s claim against El Salvador before the World Bank’s International Center for Settlement of Investment Disputes (ICSID) under the Central America Free Trade Agreement. The same tribunal is hearing Exxon’s lawsuit against Venezuela under a bilateral investment treaty (BIT) between Venezuela and the Netherlands.
In neither case is the parent company domiciled in the country that that is party to the applicable treaty. Exxon may have restructured its operations specifically to create a Netherlands entity, but the ICSID rejected Venezuela’s jurisdictional argument that that was an abuse of the treaty system. There are more than a thousand bilateral investment treaties (the U.S. is party to dozens). How would a corporate lawyer incorporate them into general guidance regarding a firm’s optimal corporate structure? It is fair that companies can use corporate structure to trigger or avoid investment treaties, while countries cannot reorganize to do the same?